Rhodes v. Robinson, et al

Filing 298

ORDER Adopting Findings and Recommendations and Granting Defendants' Motion to Dismiss Certain Claims 288 , signed by District Judge Lawrence J. O'Neill on 8/8/13. Defendant Jones is DISMISSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KAVIN M. RHODES,

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Plaintiff,
v.

Case No. 1:02-cv-05018 LJO DLB PC
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND GRANTING
DEFENDANTS’ MOTION TO DISMISS
CERTAIN CLAIMS

M. ROBINSON, et al.,
(Document 288)

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Defendants.

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Plaintiff Kavin M. Rhodes (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on

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Plaintiff’s Third Amended Complaint, filed on June 9, 2011, against (1) Defendants Wenneker,

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Pazo, Tidwell, Chapman, Lopez, K. Todd, Metzen, and Garza for retaliation in violation of the First

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Amendment; and (2) Defendants Garza and Jones for excessive force in violation of the Eighth

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Amendment.

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On October 9, 2013, Defendants filed a Motion to Dismiss pursuant to the unenumerated

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portion of Rule 12(b) of the Federal Rules of Civil Procedure, for Plaintiff’s failure to exhaust

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administrative remedies as to Count 13. The matter was referred to a United States Magistrate Judge

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pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On May 20, 2013, the Magistrate Judge issued Findings and Recommendations to grant

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Defendants’ Motion to Dismiss Count 13 and Defendant Jones.1 The Findings and

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Recommendations were served on the parties and contained notice to the parties that any objections

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to the Findings and Recommendations were to be filed within fourteen days. After receiving

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extensions of time, Plaintiff filed objections on July 22, 2013. Defendants did not file a reply.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de

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novo review of this case. Having carefully reviewed the entire file, including Plaintiff’s objections,

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the Court finds that the Findings and Recommendations are supported by the record and proper

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analysis.
Throughout Plaintiff’s objections, he continues to suggest that Magistrate Judge Beck is

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biased against him. As proof, he cites a reference to “2013,” rather than the correct date of “2003.”

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Contrary to Plaintiff’s theory that Judge Beck’s intent was to make his appeal seem “untimely by

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years,” it is simply a typographical error.

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Plaintiff also continues to argue that appeals coordinators conspired to screen out his

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“timely” June 17, 2003, appeal. However, the fact remains that Plaintiff could have, but did not,

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submit a timely appeal regarding the events in Count 13, to the first level of review. As the

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Magistrate Judge found, “Plaintiff was capable of filing an inmate appeal, but did not comply with

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the prison appeals procedure.” ECF No. 288 at 5. “If a prisoner had full opportunity and ability to

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file a grievance timely, but failed to do so, he has not properly exhausted his administrative

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remedies.” Marella v. Terhune, 568 F.3d 1024, 1028 (9th Cir. 2009).

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Insofar as Plaintiff contends that the April 2003 appeal put prison officials on notice of the

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events on June 17, 2003, he is incorrect. While the April 2003 appeal may have referenced the

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threats, it could not have discussed the actual transfer, including a cell extraction and use of pepper

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spray, that occurred in June 2003. Although Plaintiff may disagree with the exhaustion procedure

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and/or requirements, it does not change the ultimate conclusion.

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Count 13 is the only count against Defendant Jones.

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Accordingly, IT IS HEREBY ORDERED that:

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The Findings and Recommendations, filed May 20, 2013, are ADOPTED in full;

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Defendants’ Motion to Dismiss (Document 276) is GRANTED;

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Count 13 is DISMISSED for Plaintiff’s failure to exhaust administrative remedies;

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and

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4.

Defendant Jones is DISMISSED.

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IT IS SO ORDERED.
Dated:

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/s/ Lawrence J. O’Neill

August 8, 2013

UNITED STATES DISTRICT JUDGE
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DEAC_Signature-END:

b9ed48bb

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